26 August 2011


Is the message failing to get through or are some people being 'oppositional'?

Several months ago, in a Privacy Law Bulletin article, I discussed the law around the 'ADFA Webcam Incident', ie the prosecution of officer cadets at the Australian Defence Force Academy (ADFA)over illicit videoing of intimate activity involving one of their peers.

After coverage of that incident in the national media and establishment of official inquiries, at least one of which has been extended because of ongoing revelations of sexual harassment and other misbehaviour at ADFA, it would be reasonable to assume that the cadets would be wary of engaging in illicit surveillance of each other. ADFA is, after all, only a few kilometres away from the nightclubs of Civic (ie the Canberra CBD) and the sex-on-premises venues of Fyshwick. That assumption is apparently misplaced.

Today's Canberra Times reports that the Australian Federal Police have charged a male cadet over a new incident, this one involving secret videoing of a female cadet in the shower.
Police said the 21-year-old man - who Defence said was an international officer cadet studying at the academy - had been arrested after last night’s incident.

"Police will allege that a 21-year-old female cadet found a mobile phone hidden in a vent above a shower at her accommodation block at ADFA. The phone was recording video while the woman was showering", police said.
ADFA staff and the Australian Defence Force Investigative Service reportedly "located the owner of the phone" and contacted the Police, who "went to the academy about 11.50pm and seized the mobile phone, a laptop and a USB memory stick from the man’s room". The alleged offender will be charged with committing act of indecency without consent.

The Defence Department's statement indicates that the alleged offender is an international officer cadet studying at the academy.
Defence is providing full support to the individuals involved.

Defence, including ADFA, takes allegations of unacceptable behaviour very seriously and will cooperate with the relevant authorities. As the incident is before the ACT Magistrate's Court, it would be inappropriate to comment further on the matter at this time.
The ABC updated the Times report, stating that Obaid Fayyaz has appeared in the ACT Magistrates Court, with Magistrate Lorraine Walker granting bail on the condition Fayyaz surrender his passport and not have contact with the female cadet.

No plea was entered and he will reappear in court next month.

23 August 2011

Revolving doors?

An article in the Washington Post reminds us that ICANN's governance needs work.

In commenting on the aftermath of ICANN's announcement of an 'open slather' gTLD policy (characterised elsewhere as an expression of regulatory capture and more acutely by Nicholas Weston as the 'Full Employment Act For Domain Name Practitioners'), the Post states that
Today’s decision will usher in a new Internet age,’’ said Peter Dengate Thrush, chairman of the Internet Corp. for Assigned Names and Numbers, after leading the June 20 vote.

Four days later, Dengate Thrush finished his term as ICANN chairman and within a month joined a London company called Top Level Domain Holdings that plans to buy Web suffixes created by the plan and offer Internet registry services.

Dengate Thrush’s move and that of another former ICANN employee have drawn criticism from government watchdogs. The U.S. government is considering adding a conflict-of-interest provision to the contract for domain-name system support performed by ICANN since 1998.

"Given how quickly these two individuals sped through the revolving door, one can’t help but wonder if thinking about their next career move influenced their policy decisions", said Sheila Krumholz, executive director of the Washington-based Center for Responsive Politics.

ICANN doesn’t restrict what employees, executives or directors do after they leave, though they are subject to confidentiality agreements, said John Jeffrey, the group’s general counsel.

"There are no ethical or contractual prohibitions on moving from ICANN to work in the industry, and, in fact, that’s what many people have done", Dengate Thrush said. "Most people at ICANN are there because they’re in the industry to start with."
One response might be that just because something is common does not mean that it is right or that it is best practice, the latter being something to which ICANN aspires.

The Post states that
Dengate Thrush, a 55-year-old intellectual property lawyer from New Zealand, had served as an ICANN director since 2005 and took over as chairman in November 2007. He said he was approached by Top Level Domain Holdings on June 24, the day his term as chairman ended.

Negotiations proceeded "very rapidly", and he signed a contract July 15, he said. In a July 17 statement, the company announced his hiring as executive chairman and said Dengate Thrush would be an "outstanding asset."

"Peter championed successfully the approval of the new gTLD programme at the highest levels, and with Peter on board I have every confidence we will achieve the same success," said Antony Van Couvering, chief executive of TLDH, said in the statement.

Craig Schwartz, a former ICANN employee, last month joined the Financial Services Roundtable, a Washington-based lobbying group whose members include Bank of America and J.P. Morgan Chase.

Schwartz, who was chief gTLD registry liaison at ICANN, said he accepted a job offer from the Roundtable in May and stayed through ICANN’s June 20 vote. He left ICANN June 30 and started his new job July 11.

The business group is considering creating a vehicle with the Washington-based American Bankers Association to acquire top-level domains such as dot-bank and dot-insure for use by financial institutions, said Leigh Williams, president of technology policy for the Roundtable.

"The financial community will benefit greatly from Craig’s firsthand knowledge of ICANN’s domain program," Williams said in a July 11 statement announcing Schwartz’s hiring and noting his involvement in the domain-name expansion.

Schwartz said he’s not aware of any restrictions for departing ICANN staff and declined to disclose his compensation at ICANN and at the Financial Services Roundtable.
Given the importance of exemplary governance ICANN might move quickly to develop, publicise and implement meaningful restrictions. The Post notes that -
ICANN’s bylaws state that no directors "shall vote on any matter in which he or she has a material and direct financial interest that would be affected by the outcome of the vote."

"There’s been no evidence supplied to me or the board to show" that Dengate Thrush "violated our conflicts of interest policy," said Jeffrey, ICANN’s general counsel. "Should such information be made available, that would considered."

The governance committee of ICANN’s board has been looking at whether "post-service" policies are needed, he said.
One issue here is whether the bylaws are adequate. Should Directors and executives be restrained once they leave the organisation, rather than merely while they make policy and management decisions within ICANN?

The National Telecommunications & Information Administration (the US Commerce Department agency overseeing ICANN contract) is reviewing public comments on whether the terms of the contract between ICANN and the US Government should be amended, with the contract expiring in March 2012
"The conflict of interest issue was raised to NTIA in public comments" on the coming contract, Assistant Secretary of Commerce Lawrence Strickling, who advises President Obama on telecommunications policy, said in an e-mail. "Based on that input, we will consider whether the contract should contain additional provisions to guard against conflicts of interest by whomever is chosen to perform the work." ...

"Since ICANN is operating as a quasi-governmental agency, the revolving-door restrictions ought to apply, but they just don’t in this case and that’s just very unfortunate", Craig Holman, legislative representative for Public Citizen, a Washington consumer advocacy group.

Rogan Kersh, an associate dean at New York University’s Wagner School who does research on lobbying, said the ICANN departures created "the perception of questionable behavior."

“The fact that they have the power to reshape the Internet so extensively, a vital aspect of our social and economic existence,” Kersh said, "suggests there should be heightened ethical scrutiny for the acts they perform."
Quite so

Incarcerated oldies

'Older Prisoners – a challenge for Australian corrections' (Trends & Issues No. 425) by Susan Baidawi, Shelley Turner, Christopher Trotter, Colette Browning, Paul Collier, Daniel O’Connor & Rosemary Sheehan of the Australian Institute of Criminology notes the aging of the Australian prison population.

Inmates over the age of 50 comprised 11.2% of the Australian prison population in 2010, up from 8.3% in 2000. "In terms of raw prisoner numbers, this equates to approximately 1,500 additional older inmates — an increase of 84% — across Australian prisons over the past decade", with the greatest growth among those aged over 65, whose numbers rose over 140% in the decade from 2000 to 2010. "This far exceeds the increase in the national prison population, which was only 36 percent over the same time period".

The authors comment that -
Older prisoner populations present a number of challenges for governments, correctional administrators, healthcare providers and community agencies.

In 2010, inmates over the age of 50 comprised 11.2% of the Australian prison population. This contrasts with the situation in 2000, when only 8.3% of prisoners were aged 50 years and over. In terms of raw prisoner numbers, this equates to approximately 1,500 additional older inmates—an increase of 84% — across Australian prisons (ABS).

In 2010, the numbers of older Indigenous prisoners were relatively lower, comprising only 9.5% of males (294) and 7% of females (15) aged 50 years and over but this may reflect the lower median age of death of Indigenous Australians compared with non-Indigenous Australians (52.5 years for men and 61.3 years for women in 2009; ABS 2009).

Indigenous prisoners would therefore be expected to be affected by age-related health issues at a younger age than other prisoners and this should be accounted for in future research and practice – for example, by altering the definition of ‘older’ for Indigenous prisoners to 45 years and over.

The paper also examines issues such as the costs of responding to rising healthcare needs, and infrastructure issues surrounding accommodation and correctional programs for older prisoners such as disability needs. This may include the establishment of special needs units for older prisoners and the employment of specialist staff, and specialised post-release services.
They go on to highlight issues, including -
Health concerns

As with older people in general, the most immediate and apparent issues facing older prisoners are those related to ageing and associated declines in mental and physical health. Furthermore, considering the accelerated biological ageing process, a prisoner who is chronologically 50 years of age is generally expected to display the onset of age-related health concerns of a 60 year old in the general population . Such concerns include coping with chronic disease and/or terminal illness, fear of dying, pain management, reduced levels of mobility, disability, loss of independence and cognitive impairments. The rising numbers of older prisoners has specific implications for prison health services (eg in screening, preventative healthcare and chronic disease management) as well as custodial management of older prisoners (in terms of accommodation needs and program delivery, for instance). Access to current Australian data characterising the prevalence, nature and impact of health-related issues among older prisoners is essential for both healthcare and custodial planning in this area and should therefore be a priority for local research.

Mental health and adjustment

Research suggests that although older prisoners are generally less disruptive than younger prisoners, a considerable number experience depression and other psychological problems, suggestive of institutional adjustment difficulties. Historically, it seems that little attention has been paid to issues relating to older prisoners, partly due to the perception of prison staff that older prisoners are ‘compliant’ and therefore, not (overtly) a ‘problem’. This is reflected in national and international research concerning mental health among older prisoners, of which there is ‘strikingly little’.

International research indicates that up to 40 or 50 percent of ageing prisoners experience mental health issues, including a high prevalence of depression. Further, research has also identified that prevalence rates of mental illness among prisoners are likely to be higher than estimates which rely on prison records due to a number of reasons. First, mental illness may develop during the course of incarceration after initial screenings have been completed and second, prisoners may also not disclose symptoms of mental illness due to fear of consequences, such as eligibility for parole and fear of judgment. This may have implications for older prisoners upon release, particularly those with unidentified mental health needs, as they may be unable to access various health and social services, leaving them vulnerable and at risk of reoffending.

Increasing costs

Corresponding with the rise in numbers of older prisoners, many writers have highlighted an increase in healthcare costs as a concern for policymakers, prison administrators and government. Research in both Australia and the United States has identified that the cost of accommodating older prisoners is approximately three times greater than it is for their younger counterparts. In addition to actual and potential costs, many prison administrators are considering, or have responded to, older prisoners’ health needs through hiring specialised staff (eg in palliative care or gerontology) and/or the creation of nursing or ‘older prisoner’ units. The rising numbers of older inmates in Australia therefore has implications for correctional budgets and there is a subsequent imperative to identify and adopt cost-effective strategies, particularly in relation to healthcare delivery, for this prisoner group.

Prison environment and regime

It is commonly understood that correctional environments are primarily designed for the young and able-bodied, who comprise the majority of prisoners. As such, many researchers have argued that older prisoners’ health concerns are exacerbated by many prison environments and regimes. Research findings support this and suggest that prison environments and regimes poorly cater for the needs of older prisoners with physical disabilities, such as limited mobility (eg requiring the use of ramps, wheelchairs, walking frames or sticks), hearing or vision impairments, infirmity or incontinency.

Some writers have described this situation as a ‘double punishment’, concluding that difficulties with, or lack of access to, prison facilities (eg baths and showers and upper bunk beds) and programs (such as exercise and education) creates a harsher prison environment for older prisoners. Others have described the lack of adaptation as ‘not only disadvantageous, but dangerous in some cases’.

22 August 2011

Yet again, with feeling

The 4 August issue of The Art Newspaper reports another push in the US for a national droit de suite (visual arts resale royalty) regime.

The regime would be restricted to auction houses, with an exclusion of commercial galleries and private sales.

Its report states that -
The Artists’ Rights Society (ARS), the main copyright and licensing collecting agency in the US, is pushing for legislation that would see droit de suite, or artists’ resale rights, become federal law. ... the new legislation will be different, said Theodore Feder, president of the ARS. Resale fees “would not be applied to galleries”, partly because they are such vocal opponents of droit de suite, “but also because auction sales are public, while gallery sales are private, so it would be difficult to track resales”.

The late Senator Edward Kennedy tried to enact the resale royalty in 1987 as part of his original draft for the Visual Artists Rights Act (VARA) but it proved so contentious that it was removed from the otherwise successful act. Now, the “person leading the charge is Bruce Lehman”, said Feder, referring to the former Commissioner of the United States Patent and Trademark Office who helped draft the original 1976 US copyright law and the 1998 Digital Millennium Copyright Act.
The plan has attracted the usual comments, some disingenuous. The report notes that -
“The rights collecting associations, the principal lobbying force for enacting the resale right in the US and abroad, would break out the champagne and dance in the streets,” if the resale law was made legal, said John Henry Merryman, emeritus professor of art and law at Stanford Law School in California and author of Law, Ethics and the Visual Arts. “The small minority of artists whose works have a significant secondary market would get richer. The great majority of artists, who have no significant secondary market, would have fewer gallery exhibitions and decreased sales in the primary market,” he said, adding that an application of the tax to auction sales only “would be seen as unfair discrimination. [The auction houses] would certainly lobby against it.”

Dealers also oppose the measure. Lucy Mitchell-Innes, the president of the Art Dealers Association of America (ADAA), said that: “Although the ADAA and its membership is a strong supporter of artists’ rights ... it has long been our belief that a droit de suite law in the US would be extremely difficult to enforce and therefore be ultimately unsuccessful. The US collector base, many of whom are very generous philanthropists ... would be resistant to a resale tax.”
European regimes have not, I note, meant the end of civilisation (or of auction houses, dealers and commercial galleries) although it remains a moot question as to whether the droit is the best way to reward new/established artists and their estates.

Innovation Patents

The Advisory Council on Intellectual Property (ACIP) - the body that advises IP Australia regarding industrial property - has released a 30pp discussion paper [PDF] as part of its review of the Innovation Patent System

ACIP states that -
The innovation patent system was established in 2001 to stimulate innovation in Australian small to medium business enterprises. It protects incremental or low level inventions that do not meet the inventive threshold required for standard patent protection and are not covered by design legislation.

In recent years a variety of concerns have been raised about the innovation patent system and whether it is meeting its original objectives. A key concern is that an innovation patent is overly difficult to invalidate and the remedies for infringement are overly generous. Another concern is that innovation patents are being used to obtain a form of quick protection for higher level inventions while a standard patent is being pursued. Also, the innovation patent system has never been reviewed to assess whether it remains effective and appropriate for Australia now and in the future.

On 28 February 2011, the Minister for Innovation, Industry, Science and Research requested that ACIP investigate the effectiveness of the innovation patent system in stimulating innovation by Australian small to medium business enterprises.
ACIP has invited written submissions in response to this Issues Paper.

In particular, It seeks responses to Questions 1-11 contained in Part 8., although "the purpose of the paper is to provoke discussion and any other relevant comments are very welcome".

The closing date for submissions is 14 October 2011.

The Last Frontier

The Senate last week referred the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 (Cth) to the Senate Legal & Constitutional Affairs Committee for inquiry and report.

Introduced with the Tobacco Plain Packaging Bill 2011 (Cth) , the Bill amends the Trade Marks Act 1995 (Cth) to provide that regulations may be made in relation to the plain packaging of tobacco so that businesses are not prevented from registering new trade marks or from protecting trade marks against infringement.

A focus of the committee’s inquiry will be an examination of the constitutionality of the provisions of the Bill.

Submissions should be received by 02 September 2011. The reporting date is 19 September 2011.

The Explanatory Memorandum to the Bill states that -
The Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 (the Bill) is being introduced so, if necessary, the government can quickly remedy any unintended interaction between the Tobacco Plain Packaging Act 2011 (the Plain Packaging Act) and the Trade Marks Act 1995 (the Trade Marks Act). The objective of any such exercise of power under the Bill will be to ensure that applicants for trade mark registration and registered owners of trade marks are not disadvantaged by the practical operation of the Plain Packaging Act.

The Australian Government is implementing a comprehensive suite of reforms to reduce smoking and its harmful effects. As part of these reforms the Government committed to introduce legislation to require plain packaging of tobacco products, to remove one of the last remaining frontiers for tobacco advertising.

The Plain Packaging Act will prevent tobacco advertising and promotion on tobacco products and tobacco product packaging in order to:
• reduce the attractiveness and appeal of tobacco products to consumers, particularly young people;
• increase the noticeability and effectiveness of mandated health warnings;
• reduce the ability of the tobacco product packaging to mislead consumers about the harms of smoking; and
• through the achievement of these aims in the long term, as part of a comprehensive suite of tobacco control measures, contribute to efforts to reduce smoking rates.
The Plain Packaging Act prevents a trade mark from being placed on tobacco products or their retail packaging, so as to prevent trade marks from being used as design features to detract attention from health warnings or otherwise to promote the use of tobacco products. However, section 28 of the Plain Packaging Act deals with the operation of that Act and the Trade Marks Act, in a way that is intended to ensure that the operation of the Plain Packaging Act will not affect trade mark owners’ ability to protect their trade marks from use by other persons, and to register and maintain the registration of a trade mark. Owners of trade marks in relation to tobacco products will be able to use their trade marks, other than on retail packaging and the products themselves, in ways that do not contravene the Tobacco Advertising Prohibition Act 1992 or other laws, for example on business correspondence.

To ensure that this intention is achieved, the proposed Bill will insert a new section 231A to allow regulations to be made under the Trade Marks Act in relation to the effect of the operation of the Plain Packaging Act and regulations made under that Act on
(a) a provision of the Trade Marks Act or
(b) of a regulation made under that Act.
Regulations made under new section 231A are not intended to have any effect on the operation of the Trade Marks Act in relation to goods or services not governed by the Plain Packaging Act.

21 August 2011

Sexting inquiry

In a nice response to recent panics about sexting the Victorian Government has announced an inquiry into whether Victorian laws are too harsh for teenagers caught sending explicit images of themselves via mobile phones, highlighted here recently.

The ABC reports that -
Under current legislation, the practice known as sexting is classed as child pornography, and teenagers involved can be jailed for up to 10 years and be listed on the Sex Offenders Register.

The Victorian Crime Prevention Minister, Andrew McIntosh, says those caught up in such behaviour are often misguided.

"The Government is concerned that there is a growing prevalence of sexting," he said.

"I think there needs to be proper education in relation to the implications but also the Government wants to look at whether or not child pornography charges are necessarily an appropriate measure for these sorts of offences."
The matter is to be explored by the state parliament's joint Law Reform Committee.

McIntosh is reported as commenting that -
We don't of course in any way condone child pornography but in, perhaps if I can describe it as, innocent hands it can lead to serious implications.

It's a joint parliamentary committee to look at whether or not the legislative frameworks are adequate and to educate young people about this activity and the implications of sexting.